Said El Fassi et al.

Patent Trials and Appeals Board

Sep 26, 2019

13637529 - (D) (P.T.A.B. Sep. 26, 2019)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/637,529 10/25/2012 Said El Fassi 2010P05799 1016
27350 7590 09/26/2019
LERNER GREENBERG STEMER LLP
Box SA
P.O. BOX 2480
HOLLYWOOD, FL 33022-2480
EXAMINER
KLEINMAN, LAIL A
ART UNIT PAPER NUMBER
3668
NOTIFICATION DATE DELIVERY MODE
09/26/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
boxsa@patentusa.com
docket@patentusa.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SAID EL FASSI and CLARA NOGUEIRA ALVES
Appeal 2019-000825
Application 13/637,529
Technology Center 3600
Before JENNIFER D. BAHR, DANIEL S. SONG, and
JEREMY M. PLENZLER, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 17–32. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM-IN-PART and enter a NEW GROUND OF
REJECTION.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as
Siemens S.A.S. Appeal Br. 1.
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CLAIMED SUBJECT MATTER
Appellant’s invention is directed to a “[m]ethod and system for
managing specific events related to the movements of a guided vehicle.”
Spec. 1:2–3. Claim 17, reproduced below, is illustrative of the claimed
subject matter.
17. A method for managing specific events, which comprises
the steps of:
detecting at least one specific event that could disturb a
movement of a driverless automatically guided vehicle;
performing a remotely controlled reversible switching
from a normal driving mode to a remote driving mode of the
guided vehicle following a detection of the specific event, the
switching being remotely controlled by a remote-controlled
device capable of performing a remote switching from the
remote driving mode to the normal driving mode, wherein the
normal driving mode is a driverless automatic driving mode
without a driver on board the automatically guided vehicle and
the remote-controlled device is disposed offsite from the
driverless automatically guided vehicle;
measuring in real-time and collecting of piloting data in
the remote driving mode;
communicating in real-time of the piloting data between
a remote piloting module of the driverless automatically guided
vehicle and a remote control station;
processing in real-time the piloting data;
performing in real-time a manual and remote piloting of
the driverless automatically guided vehicle in the remote
driving mode, on a basis of the piloting data; and
performing the remotely controlled reversible switching
from the remote driving mode to the normal driving mode at a
reception of a signal marking the end of the specific event, and
wherein an automatic pilot of the driverless automatically
guided vehicle takes charge again of piloting the driverless
automatically guided vehicle.
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REFERENCES
The prior art relied upon by the Examiner is:
Florentin
Kumar
US 2005/0119801 A1
US 2009/0186325 A1
June 2, 2005
July 23, 2009

REJECTIONS
I. Claims 18–32 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Kumar.
II. Claim 17 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Kumar and Florentin.
OPINION
Claims 18–32
In contesting the Examiner’s finding that Kumar anticipates the
subject matter of independent claims 18, 24, and 28, Appellant’s only
argument is that the claims require structure that operates a vehicle “without
the need of an operator on board the vehicle at any time (i.e., during normal
operation or during remote operation)” and provides for a remote manual
operation of the vehicle from offsite of the vehicle, but, “[i]n contrast,
Kumar teaches an operator is on-board the train during all remote
operations” or “requires an on-board conductor for operating the trains in the
remote operation mode.”2 Appeal Br. 19–21. The Examiner, on the other
hand, finds that Kumar discloses a driverless automatic driving mode
without a driver on board the guided vehicle and a remote driving mode in

2 Appellant uses the term “train” in the arguments, but, consistent with the
claim language, we understand the arguments to be directed to operation of a
“vehicle.” See Appeal Br. 19–21; id. at 24–28 (Claims App.).
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which the vehicle is controlled manually by a remote control station offsite
of the vehicle. See Final Act. 3–5; Ans. 4 (relying primarily on Kumar,
Fig. 30; ¶¶ 94, 220). Thus, the issue before us in reviewing this rejection is
whether Kumar discloses structure for operating the vehicle in a remote
driving mode manually (i.e., non-autonomously) from a remote control
station offsite of the vehicle, or whether Kumar requires an on-board
operator.
The Examiner finds that:
Kumar explicitly discloses various exemplary embodiments of
the disclosed remote piloting of a driverless and automatically
guided vehicle. Kumar explicitly includes an embodiment
without an operator onboard. Kumar explicitly includes
describing the exemplary embodiments may be practiced with
various types of computer configurations including local and
remote computing environments that may be contained entirely
within the locomotive, or adjacent locomotives in a consist, or
off-board in wayside or central offices where wireless
communication is used (See at least ¶94). By disclosing the
invention may be entirely within an off-board wayside office,
Kumar is clearly indicating every disclosed feature may be
encompassed in an off-board environment.
Additionally, for an entirely remote computing
environment in an off-board wayside or central office, the
operator is necessarily remote from the vehicle, i.e. “without a
driver on board the automatically guided vehicle.” The remote
computing environment embodiment would be inoperable if an
operator was still onboard the automatically guided vehicle,
therefore, by necessity, for the remote computing environment
embodiment to operate, the user must be located remotely.
Ans. 4.
Appellant disagrees with the Examiner’s interpretation of paragraph
94 of Kumar. Appeal Br. 14. Appellant submits that paragraph 94 does not
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disclose that an operator is remotely located, but only that computing
devices for performing some processing are remotely located. Id.
According to Appellant, “in a distributed computing environment, [as
disclosed in paragraph 94 of Kumar,] there is usually a user that is using a
client machine which is connected to a server that provides information, a
database and other tools to the machine of the user.” Id. at 15.
We find that Appellant has the better position with respect to the
interpretation of paragraph 94 of Kumar. Even if all of the processing tasks
are performed by computer equipment located off-board of the train, there
must be control equipment on-board the train to receive information and/or
commands from the off-board equipment and execute the actual control of
the train equipment. Such on-board control could be performed either
automatically (without the need for on-board manual action) or manually
(i.e., with a human operator on-board). Paragraph 94 is silent as to whether
a human operator is involved or where such operator might be located with
respect to the distributed computing environments.
To the extent that the Examiner may also be relying on paragraph 220
and/or Figure 30 in support of a finding of remote, off-board manual (i.e.,
non-autonomous) control, such reliance is misplaced. Figure 30 and the
accompanying description in paragraph 220 refer to providing “an operator
input device . . . to allow the operator to take control of the powered system”
and a display for an operator to view information related to operating
conditions, but Kumar is silent as to where such operator, operator input
device, or display are located.
Appellant cites several paragraphs of Kumar as disclosing or
confirming that the operator is on-board. See Appeal Br. 12–13. Paragraphs
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8–10 refer to operator being “usually aboard” (emphasis added) a powered
vehicle. This seemingly leaves open the possibility that in some instances
the operator is not on board, but is, at best, ambiguous as to whether
Kumar’s invention is applicable to situations in which an operator is not
on-board the vehicle. Kumar’s Paragraph 99 discloses an operator manually
entering data into a locomotive via an onboard display, and paragraph 126
refers to “the on-board operator.” Thus, Kumar expressly discloses an
embodiment of the invention in which an operator is on-board the vehicle.
Further, paragraph 159 discloses an operator viewing visual signals from
wayside equipment “if operating in dark territory, or where information from
wayside equipment cannot electronically transmit information to a train,”
thereby disclosing, at least implicitly, that the operator is on the train.
Kumar also refers to “the operator and/or remote facility, or dispatch.” See,
e.g., Kumar ¶ 126. This suggests that Kumar contemplates an on-board
operator. However, Appellant does not direct our attention to any disclosure
in Kumar indicating that Kumar’s invention is necessarily limited to
embodiments in which the operator is on-board.
Appellant asserts that Kumar’s disclosure of the operator manually
controlling the throttle, or other train controls, such as the locomotive horn
or bell, means the operator is in the vehicle. Appeal Br. 13 (citing Kumar
¶¶ 166, 188, 207). However, we do not find, and Appellant does not
specifically identify, in these paragraphs any explicit disclosure that
operation of the throttle or other locomotive equipment by a human operator
requires an operator on-board the train, rather than via remote control.
In sum, after reviewing the respective positions of the Examiner and
Appellant, and the portions of Kumar relied on in support of those positions,
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Appellant does not persuade us that Kumar explicitly requires an operator to
be on-board the vehicle or limits manual (i.e., non-autonomous) operation to
manual operation by an on-board operator. However, the Examiner also
does not establish, by a preponderance of the evidence, that Kumar
discloses, either expressly or by inherency, structure for operating the
vehicle in a remote driving mode manually (i.e., non-autonomously) from a
remote control station offsite of the vehicle sufficiently clearly to anticipate
the subject matter of independent claims 18, 24, and 28. Accordingly, we do
not sustain the Examiner’s rejection of claims 18, 24, and 28, or claims 19–
23, 25–27, and 29–32 depending therefrom, under 35 U.S.C. § 102(b) as
anticipated by Kumar.
However, Kumar contains disclosure that is at least suggestive of the
possibility of providing operational control by an operator located off-board
the train, from a remote control station. For example, Kumar discloses that
an operator is “usually aboard” the controlled vehicle, thereby suggesting
that an operator may not always be aboard the vehicle. Kumar ¶¶ 8–10.
Further, referring to Figure 3, Kumar discloses that “a driver or operator,
and/or controller element, 51 is also provided,” thereby leaving open the
possibility that in some embodiments a driver or operator may not be
provided on the train. Kumar ¶ 137 (boldface omitted). Additionally,
although not relied on by the Examiner, Kumar illustrates, in Figure 37,
outside of rail vehicle 653, “a master controller, remote control locomotive
controller,” or actuator 651, which “is normally used by the operator to
command the locomotive.” See Kumar ¶ 242. Kumar characterizes Figure
37 as depicting “the closed loop system integrated with a master control unit
651.” Id. (boldface omitted). Thus, although Figure 37 may not necessarily
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be definitive as to where the various elements of the closed loop control
system are located relative to one another, it is at least suggestive of the
possibility of having a remote control station and remote controller for
permitting an operator to control the train from off-board the vehicle.
Further, Florentin evidences that it was known in the art for a human
operator to guide a vehicle remotely. See Florentin, Figs. 1, 2a; ¶¶ 6, 35.
Thus, considering Florentin’s teachings in combination with Kumar, it
would have been obvious to one of ordinary skill in the art to modify Kumar
to provide structure for remotely controlling the guided vehicle manually
(i.e., non-autonomously), in a remote driving mode, from a remote control
station disposed offsite from the vehicle, and wherein the autonomous
driving mode in the flow chart in Kumar’s Figure 30 is a driverless
automatic driving mode, because such a modification is nothing more than
the mere application of a known technique to a piece of prior art ready for
the improvement. See KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 417
(2007).
Thus, pursuant to 37 C.F.R. § 41.50(b), we reject independent claims
18, 24, and 28, as well as dependent claims 19–23, 25–27, and 29–32, under
35 U.S.C. § 103(a) as unpatentable over Kumar and Florentin, incorporating
the remainder of the findings and reasoning set forth by the Examiner on
pages 3–11 of the Final Action, which Appellant has not specifically
challenged.
Claim 17
In rejecting claim 17, the Examiner determined it would have been
obvious to modify Kumar by including “the feature of comparing times at
which video image data in the piloting data is captured with a time at which
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the video image data is displayed on a screen during the remote driving
mode” to compensate for a time lag between a display of the piloting data
and the collection of the piloting data, “as taught by Florentin, to account for
wireless transmission delays.” Final Act. 14–15; see Florentin ¶ 35.
Appellant does not contest the Examiner’s findings regarding Florentin or
identify any deficiency in the Examiner’s reasoning in making the
combination. See Appeal Br. 9–19.
Appellant’s only argument contesting this rejection is that Kumar
does not teach operating the train without the need of an operator on-board
the train. Id. at 19. For the reasons set forth above, the Examiner does not
establish, by a preponderance of the evidence, that Kumar discloses, either
expressly or by inherency, structure for operating the vehicle in a remote
driving mode manually (i.e., non-autonomously) from a remote control
station offsite of the vehicle. However, as discussed above, Kumar does
contain disclosure that is at least suggestive of the possibility of providing
manual control by an operator located off-board the train, from a remote
control station. Further, Florentin evidences that it was known in the art for
a human operator to guide a vehicle remotely. See Florentin, Figs. 1, 2a; ¶¶
6, 35. Thus, considering Florentin’s teachings in combination with Kumar,
it would have been obvious to one of ordinary skill in the art to modify
Kumar to remotely control the guided vehicle manually (i.e., non-
autonomously), in a remote driving mode, from a remote control station
disposed offsite from the vehicle, and wherein the autonomous driving mode
in the flow chart in Kumar’s Figure 30 is a driverless automatic driving
mode, because such a modification is nothing more than the mere
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application of a known technique to a piece of prior art ready for the
improvement. See KSR, 550 U.S. at 417.
Therefore, we sustain the Examiner’s rejection, but we designate the
rejection as a new ground pursuant to 37 C.F.R. § 41.50(b) because our
decision is based on findings and reasoning that differ somewhat from that
set forth by the Examiner.
DECISION
The Examiner’s decision rejecting claims 18–32 under
35 U.S.C. § 102 is REVERSED.
We reject claims 18–32 under 35 U.S.C. § 103(a) as a NEW
GROUND OF REJECTION.
The Examiner’s decision rejecting claim 17 under 35 U.S.C. § 103(a)
is AFFIRMED, but we designate the rejection a new ground pursuant to
37 C.F.R. § 41.50(b).
FINALITY OF DECISION
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review.” 37 C.F.R. § 41.50(b) also provides:
When the Board enters such a non-final decision, the appellant,
within two months from the date of the decision, must exercise
one of the following two options with respect to the new ground
of rejection to avoid termination of the appeal as to the rejected
claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating to
the claims so rejected, or both, and have the matter reconsidered
by the examiner, in which event the prosecution will be
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remanded to the examiner. The new ground of rejection is
binding upon the examiner unless an amendment or new
Evidence not previously of Record is made which, in the opinion
of the examiner, overcomes the new ground of rejection
designated in the decision. Should the examiner reject the
claims, appellant may again appeal to the Board pursuant to this
subpart.
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record. The
request for rehearing must address any new ground of rejection
and state with particularity the points believed to have been
misapprehended or overlooked in entering the new ground of
rejection and also state all other grounds upon which rehearing
is sought.
Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure § 1214.01.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
CONCLUSION
In summary:
Claims
Rejected
Basis Affirmed Reversed New Ground
18–32 § 102(b) Kumar 18–32
17 § 103(a) Kumar,
Florentin
17 17
18–32 § 103(a) Kumar,
Florentin
18–32
Overall
Outcome
17–32 17–32

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AFFIRMED-IN-PART; 37 C.F.R. § 41.50(b)